New Zealand College of Midwives Incorporated v Attorney-General

• Jurisdiction: New Zealand
• Court: High Court
• Judge: Gwyn J
• Judgment Date: 02 March 2026
• Neutral Citation: [2026] NZHC 405
• Year: 2026
• Docket Number: CIV-2022-485-558

In the Matter of a claim for breach of contract and equitable estoppel, restitution and under the New Zealand Bill of Rights Act 1990

Between

The New Zealand College of Midwives Incorporated

First Plaintiff

and

Yvonne Maree Hiskemuller

Second Plaintiff

and

Fiona Mary Hermann

Third Plaintiff

and

The Attorney-General

Defendant

[2026] NZHC 405

CIV-2022-485-558

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Contract — claim for breach of contract, equitable estoppel and restitutionary quantum meruit based on “free acceptance” — settlement agreement relating to remuneration of midwives — New Zealand Bill of Rights Act 1990 — Crown Proceedings Act 1950

The issues were: whether the 2018 Settlement Agreement was a binding contract contained obligations to implement a national midwifery agreement; whether the Crown breached obligations to take all necessary steps and to work together in good faith; whether the elements of equitable estoppel were established; whether a restitutionary quantum meruit was available; and whether LMC midwives were subject to unlawful discrimination on the basis of gender.

The Court held the 2018 Settlement Agreement was a binding contract and the Crown had capacity and authority to enter into it. The Crown had a duty to work together with the College in good faith which was express in the Agreement. The Crown's duty to act in good faith required it to do what was necessary to carry out its obligations under the Settlement Agreement. The Agreement contained obligations capable of independent performance, including obligations relating to a national midwifery agreement, annual renegotiation, and a fair and reasonable service price. The Crown breached the Agreement by failing to implement a national midwifery contract by July 2020, failing to pay a fair and reasonable service price, and failing to provide the ability to renegotiate price annually. The Crown was under a duty to take all necessary steps to fulfil the terms of the Agreement and to work together in good faith, and breached those obligations.

The representations relied on, when considered together and in the context of the parties ongoing relationship, were clear enough to justify the plaintiffs' reliance. The promise of equitable payment was an enduring focus of the College's ongoing dealings with the Ministry of Health (“the Ministry”) throughout the relevant period. The representations were provided against the backdrop of litigation and as a means of resolving some of the issues. In those circumstances, it was reasonable for the plaintiffs to have relied on the representations.

The evidence had not established the plaintiffs carried out the services from 1 July 2020 expecting fair and reasonable remuneration for those services, either at the time or retrospectively. Nor had the Ministry accepted those services in the knowledge that the plaintiffs would expect fair and reasonable remuneration for those services. The claim for quantum meruit failed. It was possible for the Court to conclude a fair and reasonable service price for LMC midwives.

There was differential treatment between LMC midwives and comparators, including obstetricians and GPs, on the ground of gender, resulting in material disadvantage including financial detriment, lack of autonomy, and lack of self-worth and sense of value. The limit on rights was not demonstrably justified. Declarations made and damages addressed.

Appearances:

R A Kirkness, M C W Hickford, K E Cornegé, K J Webster, D T Haradasa, N A T Udy and R J Reeves for Plaintiffs

P H Courtney, S M Kinsler, C E Sinclair and K C Grant and L A Argyle for Defendant

JUDGMENT OF Gwyn J

TABLE OF CONTENTS

INTRODUCTION	[1]
Background	[8]
The LMC model	[14]
Statutory Notices	[17]
The 2015 – May 2017 Agreements	[30]
December 2018: the 2018 Settlement Agreement	[40]
Further context	[43]
Co-design Project	[44]
PwC reports	[59]
FIRST CAUSE OF ACTION: BREACH OF 2018 SETTLEMENT AGREEMENT	[63]
National midwifery agreement	[72]
Right to annual renegotiation	[83]
Fair and reasonable service price	[86]
Constitutional context	[95]
Capacity and authority	[100]
Did the Crown signatory to the 2018 Settlement Agreement have authority? Were subsequent approvals required?	[108]
Did expenditure need to be authorised for the agreement to be enforceable?	[126]
Fettering	[135]
Was the 2018 Settlement Agreement a binding contract?	[144]
National midwifery agreement	[154]
Right to annual renegotiation	[163]
Fair and reasonable service price	[166]
Subsequent conduct	[174]
Performance of the Agreement and conclusion	[189]
SECOND CAUSE OF ACTION: BREACH OF OBLIGATION TO TAKE ALL NECESSARY STEPS AND TO WORK TOGETHER IN GOOD FAITH	[195]
Was the Crown under a duty to take all necessary steps to fulfil the terms of the Agreement?	[197]
Was the Crown under a duty to work together with the College in good faith?	[207]
Health and Disability System Review	[214]
Plaintiffs' case on breach	[220]
Defendant's case on breach	[231]
Discussion	[239]
THIRD CAUSE OF ACTION: EQUITABLE ESTOPPEL	[264]
The law of estoppel in New Zealand	[267]
The representations relied on	[272]
Is equitable estoppel available against the Crown?	[274]
Discussion	[282]
Were the representations relied on clear and unequivocal?	[298]
Discussion	[311]
Did the plaintiffs rely on the representations and was that reliance reasonable?	[321]
What was the reliance?	[322]
Discussion	[327]
Was the reliance reasonable?	[337]
Discussion	[350]
Was continued reliance reasonable?	[359]
Discussion	[365]
Detriment	[377]
Discussion	[380]
Would it be unconscionable for the Crown to go back on its representations?	[386]
Discussion	[390]
Conclusion on equitable estoppel	[400]
FOURTH CAUSE OF ACTION: RESTITUTIONARY QUANTUM MERUIT	[402]
The Crown's arguments against quantum meruit	[410]
Did the defendant know, or ought it have known, that the plaintiffs expected to be paid for their services at a fair and reasonable rate from 1 July 2020?	[427]
Discussion	[432]
FIFTH CAUSE OF ACTION: UNLAWFUL DISCRIMINATION ON THE BASIS OF GENDER	[452]
History of midwifery remuneration	[457]
The test for unlawful discrimination	[474]
Difference in treatment	[481]
Comparator analysis	[482]
Differential treatment	[507]
Differential treatment between LMC midwives and obstetricians	[509]
Differential treatment between LMC midwives and GPs	[515]
Right to negotiate	[520]
Ensuring fair and reasonable payment	[528]
“On the ground of gender”	[538]
The Notice	[542]
PHO Services Agreement	[551]
Material disadvantage	[557]
Financial detriment	[559]
Notice	[560]
PHO Services Agreement	[565]
Lack of autonomy	[570]
Lack of self-worth and sense of value	[578]
Is the limit on rights demonstrably justified?	[582]
Co-payment	[587]
PHO Services Agreement	[594]
Relief	[602]
“Effective remedy”	[606]
Discretion	[608]
Nature of the loss / Causation	[610]
Public interest factors	[621]
Is a declaration an adequate remedy?	[627]
Defendant's response to the breach	[630]
Relief in related causes of action	[633]
Injury to dignity damages	[638]
Declarations	[648]
REMEDIES	[651]
Contractual breach — loss and damages principles	[655]
Causation of loss	[659]
Quantum of loss	[664]
Negotiation?	[670]
“Fair and reasonable service price”	[674]
Terminology	[686]
Co-design Pricing Model Report	[697]
PwC report	[713]
PwC Extension Work	[718]
Plaintiffs' expert witnesses	[721]
Mr Mellsop	[723]
Intertemporal benchmarking	[738]
Comparator benchmarking (Ontario)	[747]
Dr Meade, Professor Scarpa and Associate Professor Tait — Discrete choice model	[763]
Plaintiffs' conclusion on expert reports	[776]
Conclusion on fair and reasonable service price	[780]
Individual plaintiffs' damages claims	[789]
Headline price	[796]
Date adjustment	[797]
Caseload	[799]
Assumed caseload	[801]
Actual births; average births	[804]
Discussion	[808]
FTE equivalence / Application of caseload to FTE	[811]
Apply the headline price to the FTE caseload	[814]
Business costs	[815]
On-call allowance	[818]
Conclusion re representative plaintiffs' damages	[819]
Declarations	[821]
First cause of action – Breach of 2018 Settlement Agreement	[826]
Second cause of action – breach of obligations to take all necessary steps under the 2018 Settlement Agreement	[827]
Fifth cause of action – unlawful discrimination under s 19 New Zealand Bill of Rights Act 1990	[828]
ORDERS	[829]
THE CROWN'S CONDUCT OF THE LITIGATION	[830]
COSTS	[835]
NEXT STEPS	[837]

INTRODUCTION

1 Midwifery is a profession imbued with gender. 1 It gives rise to a “gender trifecta” — midwifery care is “provided by women, for women, in relation to women's reproductive health within a model of care that supports women's empowerment and choice”. 2

2 Lead maternity care (LMC) midwives provide the vast majority of lead maternity care in New Zealand. 3 As the Crown has repeatedly and publicly acknowledged, “midwives play a vital role in New Zealand's health care” and the “sustainability of LMC midwifery is...